Helensburgh development sees council planners go for open source decision taking

Planning is traditionally the sticky toffee pudding of local politics, with secret ingredients often producing winning results.

However, we are seeing welcome evidence that planners at Argyll and Bute Council now feel free to run the legitimate rule over planning applications and to take a stand against often outrageous acts of defiance by developers and their agents.

An outline planning application (06/01319/OUT) was submitted on 20 May 2006 by Osborne Interiors Ltd of Helensburgh for a development of 72 houses – 60 affordable houses and 12 ‘market’ houses – and the formation of ‘community woodland’ at Castle Woods.

In late 2011 Osborne Interiors were looking for support from council officials for a revival of that 2006 application, this time for a reduced number of affordable homes – 36 – and the same number of market homes – 12. It is this matter that brought a letter from the council planners which is evidence of less pressured circumstances than have formerly been the case.

The Castle Woods site is at Rhu Road Higher in Helensburgh, opposite the cricket pitch and adjacent to the lovely Duchess Woods,

The site is an Open Space Protected Area (OSPA) – a situation upheld in 2008 by Government Reporters, along with two sites in Cumberland Avenue, since built on with permission in one case and controversially clearfelled in the other.

The Castle Woods site has nevertheless become the subject of this continuing major speculative development application from Osbornes, on which we have published before (linked in the second paragraph below).

This application has since been varied and is interwoven with a chain of – shall we say ‘interesting’ – convoluted planning applications, controversies and proposed mitigations from the same source.

An article we published in April this year, reporting on the attempt to overset the OSPA on Castle Woods and create a major housing development there, also carries a summary of the extravagances executed at a now related site: Osborne Interiors pursue the Dance of the chain saws in Castle Woods.

The architect for the proposed development, Lawrence Hill, wrote to the planning department back in May sending them papers and information on tree surveys and drainage issues which were required in respect of the varied application.

The council planning department responded with a meticulously evidenced position that the degree of variation from the original application is such that due regulations require the developers to withdraw the application and start from scratch.

This letter, from planning officer Howard Young, quoted and linked in full below -  is openly available on the council’s website, a situation we read as a welcome and public declaration of intent by the planners on their attitude to attempts to overwhelm them.

The Young letter

In listing at the outset the issues his letter addresses, Mr Young immediately flagged up the council’s position: ‘Why the Council considers the current application should be withdrawn’.

This position, supported by law and by best practice reconciles the inevitability – and the benefit – of planning applications being ‘developed’ over the period of their formal consideration. It takes the view that material changes emerging will require reapplication and the full public consultation regime.

A fundamental change in circumstances is laid out in Mr Young’s letter, between now and the time of the submission of the initial outline planning application.

He says: ‘Since the application was submitted (Ed: in 2006) we have an amended Planning Act and new regulations emphasising and supporting the need for greater community involvement and participation. We have an adopted Local Plan and confirmation of this site as an OSPA. We have further planning history in relation to TPO 16/04 and its constituent parts. And we have proposals for other affordable housing schemes in Helensburgh. Based on the above, I consider that readvertising and new neighbour notification would not be sufficient. Consequently the current application should be withdrawn and a fresh application submitted.’

Mr Young also notes some specific material changes that would require this same action:

• that the introduction of ‘a wholly separate area of land, not contained within the original application, is being promoted as providing an address to Policy LP REC 2 and provide the community woodland element originally described in the application submitted. There will of course be a need to link the two sites through a legally competent planning mechanism for this alternative site to have any planning merit in the determination of the current proposal.’
• ‘the residents who live next to this new site were never  notified of the intention to use this land as mitigation to application 06/01319/OUT, yet this land adjoining their homes is now being promoted as forming an important mitigation against the tree loss at Castle Woods. The proper consideration of the amended scheme therefore does not just require a re-notification, but the additional consultation with residents who are now being involved in the promotion of mitigation measures on land adjacent to their homes.’
• ‘the fact that this important part of the evaluation of the application involves both a new site and new residents who have never previously been notified of the proposals adds to my view that this is a substantial and material alteration to the application which requires to be submitted afresh to meet both the requirements and ‘spirit’ of an inclusive approach to community involvement’. This, of course, is the very involvement Osbornes are keen to avoid.
• ‘…you should also be aware that there is a live enforcement investigation over possible criminal actions relating to the unauthorised felling of protected trees at the Cumberland Avenue site which the Council’s legal department are currently gathering evidence on to clarify whether an offence has taken place. Given that one of the consequences of any illegal felling of trees could be the serving of a replanting notice, which would involve trees which should reflect the scale and type of any trees found to be unlawfully felled, any use of this land as part of a mitigation measure has complexities in potentially undermining a more demanding replanting notice the Council may wish to servie due to loss of protected trees.’

This last position of Mr Young’s lays out the barefaced scheme behind Osbornes’ proposals.

The protected Castle Woods site is significantly more substantial in scale and therefore in development potential.

The Cumberland Avenue site, the larger of two on that road, was ravaged in a manner now the subject of the enforcement investigation. At the very least, this is likely to end in a requirement for significant replanting.

So Osbornes are cheekily attempting to turn a potentially unlawful negative into a massive commercial positive. They are offering to replant (in part) the Cumberland Avenue site,  controversially clearfelled by themselves and which they may be ordered to replant anyway. They are offering to replant this as what they describe as (without discussion with the community), a ‘community woodland’. They are making this ‘offer’ conditional on its being accepted as mitigation of the loss of trees on the OSPA site at Castle Woods which would result from their proposed development.

This is the sort of move Kentucky Fried Chicken call ‘Maxing your bucket.’

Nice move if you can get away with it.

Mr Young’s letter kicks that one into touch.

There are many other cogent points in the Young letter, not least the fact that it flatly refuses to issue any letter of comfort to Osbornes on the Council planning department’s attitude to the required new application for Castle Woods. He lays out the reasons why a favourable recommendation by planning officers is unlikely.

The full text – here – of Mr Young’s letter is worth reading: young letter to hill (18.07.12)

The planners settled resolve

Following Mr Young’s letter to Osbornes’ architect, Alan Reid MP, pursuing the matter on behalf of constituents,  has received assurances from Ross McLaughlin of the Council planning department. It says:

‘Policy
‘There has been no policy change since last month

‘Current application 06/01318/OUT
‘Council retains current position that the application should be withdrawn on the basis that the application has materially changed insofar as the number of affordable houses has reduced and a new mitigation strategy has been proposed. A letter to applicant expanding on these matters has been attached for your convenience and is also on our public access system attached to this file.

‘The applicant is still considering their position and has sought a meeting with the Council mid August which has been accepted.

‘Trees at Castle Wood
‘The attached letter demonstrates that the Council has made absolutely clear to the owners of the site and their agents that we do not consider that there is a need for any urgent felling or works at the woodland If any works commence the Council will almost certainly take out an injunction to stop the works, and will bring the full weight of planning law to bear against any parties found to have acted in a criminal manner by undertaking unauthorised works to the trees.

‘Cumberland Avenue removal of Trees
‘The enforcement case is still active with witness statements and evidence currently being gathered.
The Forestry Commission have also recently visited the site and may wish to intervene as no felling license appears to have been granted for either the authorised, or potentially unauthorised felling works. They have their own legislative regime which also involves the potential to serve replacement planting notices to rectify any breach they find. If felling licences have been obtained, they appear not to be recorded on the data base of the Forestry Commission.  The Council awaits confirmation of what steps the Commission intends to take.

‘There is likely to be further updates available following the meeting between Council and applicant in mid August.’

That means any day now.

Helensburgh Community Woodland Group

This dedicated and effective group has single handedly held the fort on the planned predations of protected woodland and open space in this series of aggressive applications running counter to the agreed local plan. None of these sites are in an area scheduled for possible development.

The group has amassed evidence; has organised immediate demonstrations – as when the chain saw gang attacked the Cumberland Avenue site without warning over the May Bank holiday in 2011; has used Freedom of Information; and has briefed politicians at all levels in its efforts to preserve these spaces for the community.

It offered formally, through solicitors, to buy out a smaller Cumberland Avenue site of Osbornes before planning permission was granted to put three houses on it.

It has the unequivocal support of Helensburgh Community Council in standing against development at Castle Woods.

It is prepared to undertake the management of the Castle Woods site, in liaison with the Trustees of the adjoining Duchess Woods.

The group is also currently experiencing a welcome, generally relaxed and supportive relationship with local councilllors of all political affiliations.

The ‘wild frontier’ context of the pursuit of Castle Woods

We have previously reported a series of incidents in Helensburgh that bear more relation to the wild west than the west of Scotland, although both share a capacity to settle matters by force majeure.

One such event saw a wooded site protected with a Tree Preservation Order – for which a controversial development application had previously been rejected – devastated over the May Day bank holiday last year (2011). This took place against a background of an unresolved situation with planners asking for no action until the end of the holiday. This request was simply overset.

The council had agreed, in general, that some larches on the site might be felled – on safety grounds, not to facilitate development – but there was no specific permission given and none even mentioned to fell other larches or other native tree species present.

With the planners off duty over the holiday weekend, this site was speedily cleared of a  significant number of larches by a gang of chainsaw wielding contractors, who also cleared undergrowth to allow access to the remainder of the woodland.

Retrospective permission to fell about 20 larches was given by council officers after the holiday.

In mid May the Planning Committee gave permission for the rest of the larches to be felled. At this time tree roots were also pulled out of the ground, including a banked section at the rear, leaving the back gardens of the houses above overhanging a weakened slope.

Later, the cutters returned to address their energies to deciduous trees, which they were specifically forbidden to touch. Saplings – again formally off limits and hardly a public safety matter, didn’t stand a chance.

What was left was a truly apocalyptic scene of virtual clearfelling, obviously brought about not in the interests of public safety – tree stumps would  not suddenly flail their roots out of the ground below and entrap passers by – but to clear the site for development regardless of restrictions under consideration.

It is worth noting that the piles of logs and stumps now covering the site present a considerable dangers – and despite fencing, children are inevitably seen playing in there.

An illustrated account of this particular incident which we pub;ished earlier can be found here: Helensburgh’s Cumberland Avenue saga: the other life of planners.

The developers, Osborne Interiors Ltd and their agents – who had instructed the contractors and are a company, Viton, owned by local councillor Vivien Dance and her husband Tony -  were then metaphorically eyeballing the planners and saying: ‘So…? Job done.’

This really was a showdown at the OK Corral. The planners could do nothing to restore the site. This does not mean that they could do nothing at all, of course and such flagrant defiance requires an appropriate response.

Planning officers have been collecting evidence for a prosecution, with at least one meeting with the Procurator Fiscal having already taken place on the matter. The parties to the original incident have been informed of this ongoing action.

Essentially unrepentant but clearly aware that they have, metaphorically speaking, ground to recover, the developers, in tacit recognition of the wrong of the cowboy action in Cumberland Avenue, are proposing to replant that site.

Incredibly, this ‘offer’ is made  on condition that they get planning consent for a single ‘market level’ (ie: executive) house to be built there – AND get consent for extensive development at Castle Woods.

In spite of their conduct they are clearly accustomed to dictating terms and have largely got away with this – to date.

The planners’ rebirth

Mr Young’s letter for the planning department to Osbornes’ architect shows procedural independence not previously evident and indicates that the planners now  feel free to apply the regulations as they should, without fear or favour.

It may have been purely coincidental but it is markedly the case that the most flagrant abuses of the planners and of planning regulations and restrictions by Osborne Interiors and their agents, Viton, took place during the period in which Councillor Dance came to prominence in the previous council administration.

Her elevation followed her vigorous support for the Council Leader in the school closures controversy which led to the departure of the minority SNP group from the initial coalition with the Alliance of Independents. The failure of that coalition led to its replacement by the final tripartite coalition which came into being in November 2010. This saw Councillor Dance inherit the Chair of the Helensburgh and Lomond Area Committee – which had literally been ravaged from Councillor George Freeman in a nasty internecine war in the Alliance of Independents, led by a bullying gang of four of which Mrs Dance was an energetic member.

In this position and on all occasions, Councillor Dance properly absented herself from discussions of Osborne Interiors’ applications managed by her and her husband’s company. Viton.

However, the actions at this time by the company at Cumberland Avenue and in repeated pressure brought to bear upon the planners on the matter – along with the planners often bewildering restraint in response – suggest a dynamic that, however instinctive rather than formal on both sides,  was not conducive to the public interest.

Moreover, while Councillor Dance invariably declared an interest, she was also making public statements covertly supportive of Osbornes’ robust approach to OSPAs, even when she was Chair of the local area committee. Her comments below came in response to a question asked from the floor at URTV’s recorded debate, held at Victoria Halls on 28th June 2011:

‘I’ll just remind everyone that we have Simon Milton here from Lomond School. His new sports hall is built on an OSPA site and was built under delegated matters from the local planning officer. It’s the biggest building built in Helensburgh since I became a councillor. It didn’t even come before us because they were able to satisfy one of the criteria of OSPA and that is mitigation. And mitigation is part of the OSPA policy, which I’m sure you are most familiar with, and Lomond School’s new sports hall is an absolute example of the use of open space. And I’ll just leave it at that and say I know what I would rather have: Lomond School involving the community in that wonderful sports facility providing for our youngsters and yet still satisfy the criteria that is open space because it was mitigation that allowed them to build that. And good luck to the sports hall – I would much rather have it than a piece of open ground.’

The position  now adopted by the planners – evidenced in the letter from Mr Young and the communication to Mr Reid by Mr McLaughlin – is the objective dependence on law, regulations and proper practice.

This is where they should always stand, regardless.

There is now a councillor who acts as a liason for council staff and officers should they feel under pressure or require advice. This move has been widely welcomed, not least because of the first to fill the role -  Councillor Dougie Philand – who is universally trusted for his  exemplary integrity and fairness.

Planning is a key responsibility of local government. It is imperative that the operation of this department is seen at all times to be fair and to apply the same rule to all comers.

Should any planning staff feel themselves to be under any pressure, overt or covert, from their superiors, from elected members or from external; sources, we suggest that they refer the situation to Councillor Philand and carry on acting as they must.

It is vital that the new and proper stance of the planners does not become any more than a change of piper.

Note: A further document worth reading in this matter is the report by an independent consultant retained by Argyll and Bute Council on the Castle Woods site: mcphillimy report 2012